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Kates Nussman Rapone Ellis & Farhi, LLP

Important New Changes to Juvenile Waiver Law

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By Guest Blogger Ken Grossman, Esq.

Children age 14 or older charged with serious crimes can be "waived up" from Family Court to adult court in New Jersey, at the discretion of the prosecutor. These crimes generally involve homicide, aggravated assault, and certain robbery, arson, and sex offenses. Under the old law, juveniles aged 14 to 16 were entitled to a hearing to determine the prospects of rehabilitation. If rehabilitation was found to be achievable before age 19, the Family Court judge had the ability to deny waiver. For juveniles age 16 to 18, the prosecutor need only show "probable cause" that the offense occurred, and the judge would have no discretion. Detention after waiver could be at the county jail or in juvenile detention.

The new law, effective March 2016, does away with the two tier system. All juveniles age 15 or older are now subject to potential waiver if the charges allege one of several specific serious crimes. The only way for a juvenile to avoid prosecutorial waiver is success at either a probable cause hearing in juvenile court, or at a hearing claiming an abuse of discretion by the prosecutor. In the latter case, the prosecutor would have to show that statutory and case law guidelines for deciding whether or not to waive have been considered fairly.

If waived, the new law provides that detention, up to and including sentencing day shall only be at the juvenile detention facility, unless good cause requires the county jail. In addition, post-sentencing time shall be served in juvenile prison until the age of 21, at which time the prisoner can remain there for the rest of his term, or be transferred to adult prison, at the discretion of the Juvenile justice Commission.

These changes will simplify the waiver law, but may not significantly affect the frequency of waivers. On the other hand, the new law will succeed in waived juveniles spending less time in adult facilities and more time in juvenile incarceration, where opportunities for rehabilitation are presumably greater. Ken Grossman, who wrote this "Guest Blog," is an attorney in Hackensack, New Jersey with expertise in juvenile law, including defending juvenile delinquency charges and the Department of Child Protection and Permanency (DCPP) claims of child abuse and neglect. His number is 201-488-8201.

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